There are some common and widely-held misconceptions about legal matters. One of these is the assumption that a matter cannot be proven if one person tells one story and another tells a contradicting story. How many times have you heard, “You can’t prove it. It’s my word against yours; you don’t have any evidence.”

This misconception can be dispelled by spending a couple of hours in any small claims court – those courts of limited jurisdiction (meaning you can’t sue for big bucks) designed to permit the citizenry to resolve minor disputes without resorting to fisticuffs.

In these courts, those involved in everyday mishaps describe what happened. The judge (there’s usually no jury involved in these courts) listens as one party testifies – under oath – that the light was green, only to then listen to the other party testify that it was red.

Classic “he said, she said.” Conflicting stories. No evidence? Evidence aplenty. The judge’s job, when evidence conflicts, is to determine which story to believe (when there is a jury, that job belongs to the jury as the “finder of fact”).

If the person saying the light was red is a minister who is a respected pillar of the community and the person saying the light was green is a convicted felon with a record of lying under oath, chances are the minister’s version will prevail. But what if the minister is nearsighted, colorblind and has an interest in the outcome of the matter, and the felon has acute eyesight and no interest whatever in how the matter is resolved?

You get the idea. The judge has the job of determining which version of the facts is more likely to be accurate. To do that, he or she judges the credibility of the witnesses and determines, subjectively, which one to believe.

We see this process played out often in the pages of our legal newsletter publication, Spot Delivery, as car buyers contend that car salesmen said thus and such, while the salesmen vehemently deny having done so. Very often, opinions dealing with this sort of conflicting testimony appear when a defendant car dealer makes a motion to dismiss a car buyer’s lawsuit.

A motion to dismiss is usually made early in the case, before the parties get into the expense of discovery, which also produces evidence. The idea is to reduce the cost of litigation by getting an early resolution to the case. The motion is usually based on the dealer’s claim that the car buyer has failed to state sufficient facts to make out a viable claim. When such a motion is made, the court must look at all the facts presented by the car buyer and assume that those facts are true. If the car buyer cannot make out a case, even when the court accepts the car buyer’s version of facts as true, then the court will grant the dealer’s motion and dismiss the case. If the car buyer has any hope of succeeding, the court will usually deny the dealer’s motion and allow the case to proceed.

If the dealer’s motion is unsuccessful, all is not lost. Later in the case, after the parties have engaged in discovery and affidavits, admissions, depositions and answers to interrogatories are entered into the record, the dealer may file another motion. This one won’t be a motion to dismiss – it will be a motion for summary judgment.

Here the dealer is saying, “Judge, we don’t need to try this case, you have enough evidence in front of you to find in my favor.” Unlike the situation that arises in a motion to dismiss – when the court looks only to the facts presented by the plaintiff car buyer and must consider those facts as true – now the court looks to evidence presented by both parties. If all the evidence won’t support the car buyer’s claim – and the court still views the evidence in the light most favorable to the car buyer and draws all reasonable inferences in favor of the car buyer – then the court will award summary judgment to the dealer. A summary judgment is appropriate when all the evidence weighs heavily in favor of one party or the other, and the case can be decided based on the law because there is no real conflict regarding the facts.

When the evidence involved consists of conflicting stories told by participants in the same event, however, the case usually won’t be resolved by a motion to dismiss or a motion for summary judgment. In these types of cases, the issue is the question of whom to believe – the minister or the felon. Classic “he said, she said.” In such cases, the court will refuse to grant summary judgment, stating as the reason, that “issues of material fact must be resolved.” Despite the common misconception, both stories are “evidence.”

Determining which story is true, as a wise old lawyer once told me, “is why we build courthouses.”